Hart Fuller debate is an interesting scholarly debate between two great scholars of two different schools of thought.
The issue is the nature and characteristics of law with both scholars offering erudite insights into various facets of law and life.
Scholars have engaged in intense debates over the nature and characteristics of laws made by human beings. Positivist and Naturalist scholars have often clashed on this issue.
Read this to learn more about the Hart-Fuller Debate.
Difference between Legal Positivism and Naturalism
Legal positivism is a school of thought of analytical jurisprudence. It developed in Western Europe and the United States largely during the 18th and 19th centuries. Its notable scholars include Jeremy Bentham and John Austin.
Naturalism, on the other hand, believes that only natural laws and forces operate in the universe. And thus, all knowledge pertaining to the universe falls within the domain of scientific inquiry.
When it comes to the nature and characteristics of law, Positivists believe in ‘law as it is‘ without pondering much over what it ‘ought to be‘. They draw a distinction between law and morality and that former belongs to the realm of ‘is’ and the latter to the realm of ‘ought’.
But Naturalists focus more on the content of the law and according to them, unjust or unreasonable law is no law.
While HLA Hart comes from Legal Positivism, Fuller belongs to the Positivist school of thought.
Hart Fuller Debate on Law
Philosophers on both sides have engaged in the intense debate to justify what they believe to be true. The Hart-Fuller debate is one such famous manifestation.
The context of this debate is the post-World War II scenario when humanity was shocked over the brutal Nazi atrocities on Jews.
To be more specific, a woman was being prosecuted in 1949 for having informed the Nazi authorities that his husband had criticized Hitler.
As per one of the Nazi laws, certain criticism of Hitler was punishable by death sentence. In her defense, the woman argued that she cannot be punished for following the law of the land of those times.
The dilemma was whether Nazi laws were the law or not. If they were the law, then what is the rationale for punishing Nazi officials and citizens who merely followed albeit quite diligently the law enacted by the Nazi regime resulting in horrific atrocities for Jews.
If they were not law so to say, then what about the status of millions of business transactions, contracts, marriages, etc which happened during the Nazi regime? Are all of them are illegal?
Fuller’s opinion on Nazi Laws
According to Fuller, the Nazi regime did not command the fidelity of the right-thinking individuals on accounting of lacking the ‘inner morality of the law’, and hence it cannot be regarded as a legal system.
By inner morality of law, he refers to the procedural framework of law such as coherence, consistency, non-retrospectivity, justification, etc.
His solution to the above dilemma is the enactment of a new statute symbolizing a sharp departure from the pervert Nazi regime and giving it a retrospective effect to punish individuals guilty of facilitating the Nazi cause in the past.
Hart’s opinion on Nazi Laws
Hart also advocates the use of retrospective law to meet the ends of justice in this case but he offers a different reason for doing so. It is a ‘more nearly lawful’ way of making something unlawful which once was the law.
The reason for doing so is not necessarily morality but the requirement of fair procedures in a legal system and its justice delivery system which was missing in the Nazi laws.
So both Hart and Fuller reach the same conclusion in the instant case but by offering different justifications to support their claims. Rather than defining ‘morality’ in clear terms, they assume what other means by morality and compete with each other to show that their conception of a legal system is more just and fair, and steered towards the advancement of goodness.
But their conception of law and morality appears to be based only on the western notions of law and the legal system.
They both seem to be unaware of the oriental thoughts on this issue and in particular the ancient Indian, Chinese, and Islamic jurisprudence on the issues of law, morality, justice, and fairness.
Though ancient Indian or Chinese philosophies no longer exercise much influence, a fairly large number of the world population is still influenced and governed by Shariat or Islamic law.
Hence it becomes pertinent for modern scholars to have a more comparative attitude and approach while dealing with matters of law, morality, and justice especially when the western legal concept of justice, equity, and good conscience has been supposedly inspired by Islamic Law.
Suggested Readings
- John Rawls Theory of Justice: How Just and Fair?
- Immanuel Kant on Freedom, Autonomy and Human Dignity
- Liberty and Equality: Competing or Complementary concerns of Justice?
